Could Britain treat the EU as a series of opt-ins?

Theresa May's efforts to repatriate powers from Europe are welcome, but we
probably won't be able to use the same trick again

Theresa May makes a statement to MPs in the House of CommonsPhoto: PA

By Adam Highland

5:30PM BST 11 Jul 2013

The Conservative-led effort to repatriate powers from Europe took a big step forward this week. Theresa May revealed that Britain would opt out of all legislation in the area of freedom, security and justice, and then would opt back in to 35 of the 133 measures, such as the European Arrest Warrant and the Europol agency.

Could this opt-in system be the template for Britain’s renegotiated relationship with the EU? Enjoy the benefits where possible, but discard restrictive measures and prevent any intrusion from Brussels?

If the Tory Right had its way, Britain would opt out completely. In fact, the Tory Right would exit Europe at the first opportunity, but that decision will have to wait until 2017. The Government believes that some measures can still benefit the UK, hence the compromise, but that overall the legislation is too proscriptive. Could this approach shape those eagerly anticipated pre-referendum negotiations?

Most likely it won’t. "Out", with a dash of "in", sounds more like associate membership, such as is held by Norway and which is ruled out by Cameron. There are subtle differences. Norway has access to the Common Market under certain provisions, but it is not a member. The opt-out makes Britain a special case, but it is still a full member. Nevertheless, the idea that "out" trumps "in" is true for both associate membership and Britain’s opt-in privileges.

In reality, the renegotiated relationship will probably be a lot less dramatic. Cameron believes that the UK should remain an EU member, benefiting from and governing the Common Market. We will continue to contribute to the EU budget, albeit in line with austerity at home. It is likely that negotiations will target mainly intrusive directives which trample over UK law, for example the working hours directive or voting rights for prisoners. May’s announcement is a step in that direction. Already, one gets the sense we will still be more "in" than "out".

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This makes a lot of sense. Norway has no formal involvement with Brussels, and therefore no say over the rules which govern the Common Market. Membership gives Britain a say, and in many cases a veto, on how restrictive these are. The idea that Brussels can dictate to Parliament that prisoners must be given the vote is absurd, and must be rectified before the referendum in 2017. If not, the case for "Out" will become more compelling. But, provided these adjustments are made, Britain could stand to lose more than it gains by quitting the EU.

The difference is that the justice legislation is a list from which Britain has the privilege to pick and choose. And while this special treatment may provoke resentment, it does not directly affect other EU members. However, the rules which govern the Common Market are unpopular but necessary evils. The rest of the EU will not allow the UK to gain a competitive advantage and continue to trade freely within EU borders, a perk which no one, pro- or anti-Europe, wishes to lose.

The UK, if Cameron has his way and the "out" campaign doesn’t enjoy a sudden surge in support, will remain predominantly "in". Opt-outs will be celebrated by the Tory right because they go against the grain. Only the prospect of serious, federal-style integration within the Eurozone, which threatens to create two tiers of membership, might change this. The opt-out from justice legislation is a welcome exception, but it is not a template.